The Portsmouth 76 U.S. 682 (1869)

U.S. Supreme Court

The Portsmouth, 76 U.S. 9 Wall. 682 682 (1869)

The Portsmouth

76 U.S. (9 Wall.) 682

Syllabus

1. A captain who, in the night and in a fog, enters a port supposing it to be his port of destination enters at his peril of its being so unless there have been some necessity for his seeking a port. If there have been proper ground to doubt whether the port was the one which he supposed it to be, and he could safely wait outside till morning or could signal a tug boat to pilot him in, he should not proceed till he can see or know where he is going.

2. A loss of a part of the cargo by a jettison resorted to in order to lighten the boat after she had run aground in consequence of violating such a dictate of prudence is not a loss "by dangers of the navigation" within the meaning of a bill of lading having an exception in those terms.

3. A vessel proceeding in the night and in a fog into port is bound to proceed at a low rate of speed.

4. If a vessel is stranded, it is the duty of the captain to take all possible care of the cargo. If the vessel must be lightened before she can get off, he should get lighters, if possible, and land it, not make a jettison of it.

The Salt Company of Onondaga shipped at Buffalo, on the propeller Portsmouth, a large quantity of salt for Chicago under a bill of lading in the usual form, but containing an exception of the dangers of the navigation.

On the 9th of October, 1866, the propeller, with the salt on board, reached Fox Island in Lake Michigan, and about seven o'clock in the evening of the same day left it bound directly for Chicago, using both sail and steam. The weather was foggy, and the wind was blowing from the northeast, with a considerable sea. The fog continued during that night and all the next day, and the wind blew freshly, though not so as to prevent the propeller's carrying her foresail. Nothing particular occurred until about sunset of the evening of the 10th, when, as described by the master, the fog lifted for a minute, and a loom of the land on the west side of the lake was discovered, and the master, mate, and engineer "could just see a church steeple and a house, as near as they could

calculate." The master did not know the distance from Fox Island to Racine, but consulting with the engineer as to the quantity of steam carried, and referring to his own expectation of the time when he expected to be that far on his course, which he had fixed at six o'clock in the evening, he concluded that the place was Racine, in Wisconsin. Acting upon that conclusion, the propeller was continued on a course generally south by east half-east, and southeast, then south by west, and southwest, and finally west, until a whistle was heard, which the master took to be that of a propeller at the Chicago pier. This must have been at about three o'clock in the morning of the 11th. Soon after a white light was discovered, and this was assumed to be the Chicago light; the light at port being a white one, though not the only white one on the west coast of the lake. The sound of cars running, and of car whistles was also heard, which the master inferred to be caused by making up trains at Chicago. Accordingly he attempted to enter the port, but when the propeller came very near the pier, it was discovered not to be the pier of Chicago, and the vessel was immediately backed. It was, however, too late. She grounded and held fast. According to the testimony of the second engineer, who was in the engine room managing the steamer, the vessel, until three minutes before his getting the bell to stop, had been running at full speed, which was between eight and nine miles an hour. The captain and first engineer -- this last, until three minutes before the bell to stop was rung having been on deck with the captain -- testified that they were not running so fast, that she was "under check," the captain stating that she was not running more than from three to four miles an hour. The master testified that although the weather was rough, he might safely have remained out in the lake till daylight, or might have signaled for a tug to take them in, and that he would not have gone in had he not, in common with the other officers, certainly believed that the place was Chicago. After the boat was found to be aground and fast, the clerk was at once sent ashore and dispatched to Chicago for a tug. Meanwhile, the

propeller remained at the place where she had taken the bottom, which proved to be Waukegan, some thirty or forty miles from Chicago, until the tug arrived late in the afternoon of the 11th. No lighter was sent for, and no efforts were made to save the cargo, but after the arrival of the tug, about one thousand barrels of the salt were thrown overboard to lighten the propeller, though the wind had then subsided, and she was apparently in no danger. The next morning she was got off, and she proceeded to her port of destination, where the residue of the salt was landed. The Salt Company now filed a libel in the District Court for the Northern District of Illinois for the salt that had been thrown overboard and was undelivered. The propeller set up that it had been lost in the perils of navigation -- thrown over to save the vessel and residue -- and was so a case for general average. The district court decided otherwise, and the circuit court affirmed its decree. The owners of the propeller now brought the case here.

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